First Be Reconciled: Challenging Christians in the Courts

In First Be Reconciled, Richard Church, an Episcopalian lawyer, expresses deep reservations about Christian resort to litigation and acknowledges without reservation his debt to Mennonite thought and conviction—particularly the thought of John Howard Yoder. Church situates his discussion within several parameters. First, a concrete question: should Christians make use of the courts? Second, a specific text: 1 Corinthians 6: 1-11; and third, a particular denominational outlook: the Mennonite/Anabaptist discomfort with litigation as alien to Christian discipleship.

The trajectory of Church’s argument (and the title to his book), while not categorically writing off Christian recourse to the courts, generally treats litigation as a presumptive failure of the primary ministry of reconciliation—a ministry that places substantial weight on process. In so doing, Church also articulates a modern Mennonite outlook that puts high value on process, discernment and healing of relationships. His reading of 1 Corinthians 6 emphasizes the Apostle Paul’s comment that the very existence of a lawsuit between Christians represents a defeat, and Church expresses concern that, unlike historical Mennonites, mainstream denominations no longer ask whether litigation is appropriate to Christian dispute resolution.

However, by moving so swiftly to a “mainstream Mennonite” perspective, Church overlooks a critique of the Mennonite predilection for process over decision and reconciliation over judgment embedded within that very passage. Arguably, 1 Corinthians 6 is most striking (certainly for a Mennonite) in that its first words portray the saints (i.e., those who make up the church) as a community of judges! A judge is someone who decides. Every law student soon learns that the one option not open to a judge is to not decide. This decisive aspect of the litigation event seems diametrically opposed to Church’s emphasis and the Mennonite approach in general. In fact, notwithstanding the prominent position given to 1 Corinthians 6 by Church, his heart really lies with Matthew18, where the emphasis is on how to reconcile with or discipline a wrongdoer, rather than on how to determine whether a wrong has been committed.

Church’s bias towards reconciliation is complemented by his focus on the practicalities of conflict resolution rather than a theoretical analysis of litigation itself. However, the question needs to be asked: What is litigation? The tendency for Church (and for Mennonites generally) is to skip over that question and frame the analysis in terms of sociological/ecclesiological outcomes: Is litigation divisive in the church? Does it serve the strong over the weak? Does it muddle the distinction between the church and the world?

Here an attempt to define litigation, to articulate clearly what we are actually talking about, would help Mennonite thinkers break new ground. For example, might not litigation be understood as an attempt to address three essential questions arising out of a contested event? First, what happened? Second, was it unjust? Third, what would make things right? Litigation may center on any or all of these questions. There may be a disputed recollection of events; there may be a disagreement about the propriety of conduct; there may be a question of penalty or restitution. Is there no functional role for these questions within the church? Arguably, the typical Mennonite analysis of the litigation process tends to skate over all three of these elements and move on to critique what is really outside of the judge’s hands: enforcement—the stage at which a litigant takes the judge’s decision and invokes the coercive power of the state to require a payment, incarcerate a wrongdoer, and so on. It is only natural with such a bias to shy away from the decision-making (and truthfinding) function of law in favor of conflict resolution processes (that Mennonites secretly hope make the role of the judge and enforcement redundant).

I have been responding to Church’s work as if a Mennonite wrote it for Mennonites. To be fair, his insights and arguments are probably a refreshing and important challenge for non-Mennonite lawyers and other Christians outside the Anabaptist traditions. Furthermore, the book represents a valuable resource, both as a brief survey of theological thought about law by figures such as Augustine, Luther and Calvin, and by the very useful review and consolidation of recent Mennonite denominational statements on the role of law within and for the church. However, for Mennonites wishing to ascertain the role of law in the church, there remains another question—the question of decision. In his First Letter to the Corinthians, Paul asks with astonishment: “Can it be that there is no one among you wise enough to decide between one believer and another...?” This is a question that must leave many Mennonites perplexed and silent if, as is suggested by a quotation of John Howard Yoder in the foreword to Church’s book, we remain concerned “less with what we should decide and do than how we think about deciding and doing” (10).

Russel Snyder-Penner is a partner in Sutherland Mark Flemming Snyder-Penner, a legal firm in Kitchener, Ontario. He also holds a Master’s degree in history from the University of Waterloo.